JURIST Guest Columnists, James G. Hodge, Jr., Chelsea Gulinson, and Drew Hensley of the Center for Public Health Law and Policy, Sandra Day O'Connor College of Law, Arizona State University, examine the pros and cons of the current version of the Opioid Crisis Response Act of 2018...
On September 17, 2018, the U.S. Senate voted overwhelmingly (99-1) in support of the Opioid Crisis Response Act (OCRA) of 2018. OCRA proposes a series of measures addressing the devastating, long-term impacts of opioid addiction and abuse nationally. Building on efforts previously authorized in 2016 via the Comprehensive Addiction and Recovery Act (CARA) and the 21st Century Cures Act, OCRA seeks to launch and fund an array of opioid prevention and response efforts through multiple federal agencies in collaboration with state and local governments.
One of OCRA’s prime sponsors, Senator Lamar Alexander (R. Tenn) noted recently “The challenge of solving the opioid crisis has often been described as needing a moonshot.” To be sure, an epidemic that has taken nearly 20 years to reach its apex (hopefully) cannot be remedied through solitary acts of Congress. OCRA’s proposed measures, detailed below, are based on a series of bipartisan hearings and unquestionably well-intended. Someday, they may even help curtail opioid-related morbidity and mortality in the U.S.
Today, however, 150 more Americans will succumb to opioid addiction or misuse. Since the epidemic’s inception in 1999 to 2017, approximately 670,000 lives have been lost to abuse and misuse of these drugs in prescription (e.g. oxycodone, morphine, methadone) and illicit (e.g. heroin, fentanyl) forms. Hundreds of thousands more are admitted each year to emergency departments or seek life-saving treatments. When the Secretary of the Department of Health and Human Services (HHS) issued a national state of public health emergency (PHE) on October 26, 2017, the epidemic was instantly established as the worst ever PHE since the term originated in 2001. Sadly, without substantial and immediate public health interventions, millions of current and future opioid users will continue to face severe physical and mental impacts.
Like many Americans, chances are you know or have witnessed someone who is at risk of, or died from, opioid abuse. These contemporary deaths are preventable but require significantly greater efforts and resources than Congress promises via OCRA. As examined below, its plan to address the opioid epidemic has long-term possibilities, but tens of thousands of Americans may die in the short-term waiting for federal collaborative efforts to take effect.
OCRA’s Premier Objectives
The Senate’s version of OCRA centers on several core themes including reduction of opioid supplies, enhanced access to treatment and recovery services, protection of youth and their families, and development of opioid alternatives.
Regulation of Opioid Supplies. Among several provisions designed to limit supplies, OCRA promises more funds for law enforcement task forces working in prominent drug trafficking areas. OCRA incorporates provisions of the previously proposed Synthetics Trafficking and Overdose Prevention (STOP) Act directing the U.S. Postal Service to inspect foreign packages to help detect opioid importation. Detecting and seizing opioids may be furthered through greater collaboration between Customs and Border Protection and the Food and Drug Administration (FDA).
FDA may also require opioid manufacturers to (a) package opioids in small-dose blister packs (to encourage truncated opioid use) and (b) develop patient disposal methods to prevent diversion of unused product. Federal support of state-based Prescription Drug Monitoring Programs (PDMPs) are intended to buttress efforts to better assess and combat opioid misuse.
Treatment and Recovery. OCRA includes limited proposals on treatment and recovery efforts:
- HHS is directed to develop guidelines for emergency treatment of patients with opioid-related overdoses;
- Access to substance use disorder (SUD) treatment is expanded through approaches like medication-assisted treatment and telemedicine;
- Development of opioid recovery centers are funded through the Substance Abuse and Mental Health Services Administration (SAMHSA); and
- Reauthorization of the Building Communities of Recovery Program for peer support groups entailed in recovery services.
Infant, Youth, and Family Services: Congress has expressed strong interests in protecting infants, youth, and their families from the effects of opioid use. OCRA supports state-based efforts to improve care of substance-exposed infants. HHS is mandated to issue strategies for preventing prenatal substance use as well as guidance for how states can help keep families together during treatment. Preventing opioid use among youth is advanced through various avenues including a proposed Drug-Free Communities Program.
Long-Term Opioid Alternatives: Among other provisions, OCRA allows the National Institutes of Health to fund the development of new, non-addictive painkillers. Meanwhile, HHS is instructed to assist hospitals and other acute care settings treat millions of Americans needing pain management services.
OCRA’s Failings to Save Lives Now
On the front lines of the epidemic, state and local governments have been working for years on various efforts to confront the root causes of opioid morbidity and mortality. Like HHS, 8 states have separately declared emergencies. Many have approved naloxone standing orders and first responder ability to carry and distribute life-saving naloxone. States have increased treatment funding, restricted opioid prescribing, advocated for interagency coordination, and enhanced PDMP surveillance. Some states and localities are even considering establishing safe injection facilities (SIFs). The dominant, driving goal of these measures is to save lives now.
In its current iteration, OCRA falls well short of achieving this same goal. For starters, Congress’ paltry funding commitments inadequately address the crisis head on. The Congressional Budget Office estimated that a prior version of OCRA would authorize only about $8 billion in funding across multiple federal agencies. This amount pales in comparison to the $26 billion spent annually on HIV/AIDS programs. It is also a pittance compared to the estimated $504 billion of economic costs of the opioid crisis (estimated in 2015). The nation’s worst public health crisis requires significant resources, not Congressional “pocket change,” for public health prevention and response efforts.
Excess American mortality may be tied to this gross funding failure alone. However, OCRA’s proposed allocation of federal funding is also skewed. Some funds support immediate SUD treatment, such as reauthorizing the 21st Century Cures Act and approving SAMSHA’s comprehensive opioid recovery centers. Considerably more of OCRA’s proposed funding addresses non-treatment related efforts like drug courts, law enforcement protections against non-intentional narcotic exposures, and a pilot program to provide temporary housing for recovered users. These are meaningful efforts, but they will not prevent tomorrow’s opioid deaths.
Although naloxone and buprenorphine help substance users wean off opioids and reverse overdose effects, OCRA does not adequately increase access to these medications. Congress could have used federal purchasing power to buy and distribute mass quantities of naloxone to areas in need. Instead, OCRA merely expands meager naloxone provisions of CARA. In addition, qualified physicians are permitted to prescribe buprenorphine and methadone to only 100 patients. OCRA narrowly increases this limit to 275 patients. This falls well shy of needs among rural patients hardest hit by the epidemic due largely to their lack of access to qualified physicians.
FDA clarifications on prescription packaging specified in OCRA are deficient. OCRA authorizes FDA to require opioid blister packs. Yet, it does not limit opioid dosage or diagnoses even though patients prescribed lower doses of opioids are less likely to subsequently misuse opioids. Over half the states have enacted various opioid prescribing limitations. Congress should instruct all states to consider similar limitations consistent with emerging standards of care that counter-balance patients’ legitimate claims to access opioids where warranted to treat chronic or temporary pain.
As Americans’ brutal battle with opioids extends into its third decade, the time for massive federal infusion of resources and life-saving interventions is now. The public health repercussions may only worsen as newly-developed, more potent illicit opioids arrive from overseas. Congress’ vision for addressing the impacts of the opioid epidemic are forward-thinking, but persons at risk of opioid misuse deserve immediate access to life-saving treatment and assistance.
James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, ASU. Chelsea Gulinson, JD, is Research Scholar, Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, ASU. Drew Hensley, BA (2017) is Senior Legal Researcher and JD Candidate (2020), Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, ASU.
Suggested citation: James G. Hodge Jr. et al, The Opioid Crisis Response Act: Looking Ahead, Ignoring the Present, JURIST – Academic Commentary, Sep. 22, 2018, http://jurist.org/commentary/2018/09/jamed-hodge-opioid-responseact/.
This article was prepared for publication by Kelly Cullen, the JURIST Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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